AMEER MOHAMMED Vs. BARKAT ALI

JUDGEMENT

(1.) This is appeal against the judgment and decree dated 2-12-1988 passed by the District Judge, Sirohi in Civil Original Suit No. 47/83 (189/84) by which the trial Court decreed the suit of the plaintiff-respondent for specific performance of the contract dated 9-10-89.

(2.) Brief facts of the case are that the plaintiff alleged in the plaint that the defendant agreed to sell his house to the plaintiff on 9-10-1980 for a consideration of Rs. 47,000.00. This agreement was oral According to the plaintiff it was agreed that the defendant will bring the title deeds, from village Basni and will hand over the documents to the plaintiff. The plaintiff thereafter, will be satisfied with the title of the house of the defendant. The defendant will also hand over the possession of the rest of the building within one year except the portion in which the plaintiff is already in possession as tenant. After completion of above, the stamps will be purchased at the cost of the plaintiff and the sale deed will be executed and will be registered. At the time of registration of the sale deed, the plaintiff will make payment of balance amount of the sale consideration. It is further submitted by the plaintiff that the defendant by showing need of money for construction of house at village Basni, took Rs. 5000.00 on 24-12-1980 and Rs. 5000.00 on 6-1-1981. On 6-10-1981, the account was settled betweenthe plaintiff and the defendant of the due rent and the amount taken by the plaintiff. As per the accounts, it was found that the defendant took total loan amount of Rs. 5120.00 at various times and repaid Rs. 800.00 on 25-9-1980. The rent due in the plaintiff was from 1-6-1980 to 1-10-1981 which was Rs. 480.00, therefore, the plaintiff gave credit of Rs.1280.00(Rs.800/-+Rs.480=Rs.1280/?). This Rs. 1280.00 was given deduction from the loan amount received by the defendant of Rs. 5120.00. The remaining amount of Rs. 3840.00 was adjusted towards the payment of sale consideration of the property in dispute. According to the plaintiff, in view of the above facts till 6-10-81 the defendant received total Rs. 18,840.00 (Rs. 5000/- first payment of advance + Rs. 5000.00 on 24-12-1980 + Rs. 5000.00 on 6-1-1981 + Rs. 3840.00 as per the settlement of account). It was submitted that in part performance of the contract, the plaintiff continued in possession of the shop which was earlier in possession of the plaintiff as tenant. From 1-10-1981 the plaintiff was exempted from the rent.

(3.) The plaintiff submitted that when the defendant completed construction of his house at village Basni and came at Sirohi, the plaintiff requested the defendant to comply with the terms of the contract but the defendant did not comply with. When the plaintiff found that the limitation will expire for performance of the contract, he served a notice dated 26-5-1983 through the Advocate requesting the defendant to come with the documents of the house and execute the sale-deed. The plaintiff, expected reply from the defendant from 1-6-1983 to 7-6-1983 but the defendant deliberately returned the registered notice with an endorsement as unclaimed. The plaintiff received one notice of defendant dated 11-6-1983, on 15-6-1983. In this notice of the defendant, the defendant suppressed the fact of the agreement for sale of the property and asked the plaintiff to hand over the possession of the property treating the plaintiff as tenant of the premises. The plaintiff gave reply of the notice of the defendant on 24-6-1983 and attached the copy of the notice dated 26-5-1983 which was sent by the plaintiff to the defendant and the plaintiff again requested the defendant to comply with the terms of the contract and offered the balance amount to the defendant. The defendant despite above neither executed the sale deed nor handed over possession of the rest of the property. Therefore, the plaintiff filed the suit for specific performance of the contract on 16-8-1983.